UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PERI & SONS FARMS, INC., et al., Plaintiffs, v. Civil Action No. 19-34 (TJK) R. ALEXANDER ACOSTA, et al., Defendants. MEMORANDUM OPINION This case is about the H-2A temporary agricultural labor program, which permits agricultural employers that face a shortage of domestic workers to meet their labor needs by hiring foreign workers on a temporary or seasonal basis (“H-2A workers”). To ensure that the employment of temporary foreign workers under this program does not adversely affect the wages of similarly employed domestic workers, the Department of Labor (the “Department”) must publish an annual notice setting forth the next year’s Adverse Effect Wage Rates (AEWRs). AEWRs set a wage floor that employers participating in the H-2A program must pay to all agricultural workers. Peri & Sons Farms, Inc., and the National Council of Agricultural Employers (NCAE) (collectively, “Plaintiffs”) have sued the Secretary of Labor and two Department officials (“Defendants”), alleging that the Department violated the Administrative Procedure Act (APA) in two ways. First, Plaintiffs contend that the Department lacked statutory authority to promulgate AEWRs without first making a finding on whether the employment of H-2A workers adversely effected the wages of domestic agricultural workers. Second, Plaintiffs allege that the Department acted arbitrarily and capriciously when it disregarded certain factors, such as differences in workers’ geographic area, occupation, skills, and experience, in assessing any such adverse effect. Before the Court is Plaintiffs’ motion for a preliminary injunction. The parties have agreed to consolidate that motion with the merits, and to allow the Court to rule on the merits based on the current briefing and record. Defendants argue in their opposition that the Court does not have subject-matter jurisdiction over Plaintiffs’ claims. As explained in more detail below, the Court agrees. Plaintiffs’ claims present challenges to the 2010 regulation that established the methodology for determining AEWRs. Thus, because they fall outside the statute of limitations set forth in 5 U.S.C. § 2401(a), and because Plaintiffs have not shown that a narrow exception to that statute applies, the Court must dismiss the case for lack of subject- matter jurisdiction.1 Background A. Statutory and Regulatory Background The H-2A visa program was created by the Immigration and Nationality Act of 1952 (INA) and amended by the Immigration Reform and Control Act of 1986. 8 U.S.C. § 1101 et seq. Under the program, employers seeking to hire H-2A workers must first receive certification 1 In reaching its conclusion, the Court considered all relevant filings including, but not limited to, the following: Plaintiffs’ Complaint, ECF No. 1 (“Compl.”); Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 2 (“Pls.’ Mot.”); Plaintiffs’ Memorandum in Support of Their Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 3; Defendant-Intervenor United Farm Workers’ Motion to Intervene, ECF No. 11 (“1st Mot. to Intv.”); Plaintiffs’ Supplemental Memorandum in Support of Their Motion for Temporary Restraining Order and Preliminary Injunction, ECF No. 14 (“Pls.’ Supp. PI Br.”); Defendant-Intervenors Michael Cortez, Arnoldo ...
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